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Topic: Disciplinary, capability and dismissal

pre-dismissal checklist
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Pre-dismissal checklist

Pre-dismissal checklist

This checklist covers matters to be considered prior to dismissing employees and can help to ensure compliance with the various legal requirements surrounding dismissals.


Fair reason for dismissal

Make sure you have a fair reason to dismiss and that you have followed a fair procedure as employees who have two plus years of service may otherwise be able to bring a claim for unfair dismissal. Note that no qualifying service is necessary for automatically unfair dismissals, for example dismissals for “whistleblowing” or health and safety reasons.  It is also important to follow the Acas Code of Practice on Disciplinary and Grievance Procedures as failure to do may result in an unfair procedure and may also increase any awards by up to 25%.


Restraints and settlement

You may wish to restrict an employee's activities (particularly in the case of a senior employee), both before and/or for a period after they leave, by way of restrictive covenants. Restrictive covenants must be agreed with the employee and this is usually done by including them in the contract of employment. They may also form part of a negotiated termination settlement. For an example, see our Restrictive Covenant Clauses.

As an alternative or supplement to restrictive covenants, you may wish to put an employee on so-called “garden leave” during their notice period, which means they do not attend work, and must not take up other employment during this period. Again, an express contractual term is required to enable this option. For an example, see our Garden Leave Clause.

Finally, if you’re contemplating and then subsequently negotiating a settlement with an employee, use our Settlement Agreement Proposal Checklist to ensure you have all bases covered.

It’s always best to get legal advice with regard to restraints and settlements to make sure that you stay on the right side of the law.


Practical aspects

There are many practical and administrative issues to think about and our Pre-Dismissal Checklist provides a useful tick-off list to ensure a smooth and, if necessary, controlled departure.


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